Last updated on March 7th, 2017 at 11:54 am
Mr Justice Mostyn considers the leading case authorities and examines the pertinent parts of the earlier judgments and their relevance today. He defines what is matrimonial property (the ‘pot’ to be shared on divorce) against what is non-matrimonial property (that which should rightly be ring-fenced and excluded from the sharing principle such as pre-owned wealth, inheritances and post-separation accrual). Mr Justice Mostyn distinguishes sharing from a meritous claim brought against non-matrimonial property to meet needs (the ‘needs’ argument still trumps all).
He explores the concept of ‘fairness’ and techniques for adjusting the pot to achieve a fair outcome. He considers the mingling and merging of assets and how this might impact on the overall entitlement of parties on divorce. Mr Justice Mostyn sets out the correct approach for cases involving post-separation growth of a matrimonial asset which he says is:
- To determine the share of the pot in the absence of that growth (usually equal); and
- Then to determine the share of the growth (usually unequal to reflect the active efforts of one party compared with passive growth).
Finally, he imposes a costs sanction against the husband for wilful non-disclosure which he reminds us is ‘gross litigation misconduct’.
This judgment covers so many issues with a clear précis of the case law which will help solicitors to give more consistent and confident advice in cases with disputes about non-matrimonial and matrimonial property. Thank you, Mr Justice Mostyn, for your welcome guidance.
You can read the judgment here
